It was the wisest of men who said there comes “a time for war, and a time for peace.” The doctrine of a just war was later formulated by Aristotle, Cicero, and Augustine and finally incorporated in Article 51 of the UN Charter, which states that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense.”
Much has been said about the current military operation Israel is conducting against Hamas and doubt has been raised over its moral and legal legitimacy. So, is the war on Hamas immoral? Is any war indeed just?
To answer these questions, one needs to examine the general principles of just war theory, including the criteria for justice preceding the war, justice in war, and post-war justice.
Jus ad bellum (justice preceding war)
A nation must satisfy the requirements of jus ad bellum to have a moral and legal right to fight a war. This commences with the principle of just cause, being a wrong received through aggression. Ever since Israel handed control of Gaza to the Palestinians, more than 7,200 rockets have been fired into Israeli territory in breach of UN Special Resolution 1850. The risk to life to the nearly one million civilians within firing range is clearly just cause. As Nimr Hammad, adviser to Palestinian President Abu Mazen, stated:
The one responsible for the massacres is Hamas, and not the Zionist entity, which in its own view reacted to the firing of Palestinian missiles. Hamas needs to stop treating the blood of Palestinians lightly.
(Al-Akhbar (Lebanon), December 28, 2008)
Another requirement is that the war be fought for the sake of the just cause (right intention). Israel articulated its aim as preventing the rocket fire into Israel. It has set out to ensure that Hamas has neither the will nor the capability to repeat its crimes against humanity. Israel has no territorial ambitions and as such clearly has the right intention. Israeli president and Nobel Peace Prize laureate Shimon Peres made it clear that Israel does not “intend to occupy Gaza or crush Hamas but crush terror. Hamas needs a real and serious lesson. They are now getting it.” (Haaretz, January 4, 2009)
The requirement for legitimacy is clearly met by Israel but not by Hamas. Only legitimate states have the right to wage war. Illegitimate states have no right to govern or go to war. Israel, a democratic state with full UN membership, has the right to wage war, provided it is just. Hamas, on the other hand, does not. Hamas meets the definition of an illegitimate state as it is not recognized as legitimate by its people or the world, since it regularly violates the rights of other sovereign states, and since it violates the human rights of its own citizens. Ever since Hamas seized control of Gaza by force in June 2007, the world has rightly treated it as a pariah state. It has lost internal support as well, with a recent poll (An-Najah National University, September 2008) suggesting only 14% of Palestinians support Hamas. The regime is oppressive to its citizens and routinely uses women and children as human shields. It recently passed legislation which ushered in whipping, dismembering, and execution as standard punitive measures.
The current military action comes at the end of a six-month truce which was broken by Hamas.
Israel has exhausted all other avenues meeting the criterion of last resort: Hamas for its part signaled it has no interest in peace talks. Indeed, its charter states (Article 13) that “there is no solution for the Palestinian question except through jihad. Initiatives, proposals, and international conferences are all a waste of time and vain endeavor.” With no partner to engage with diplomatically and with no truce in place, Israel had no choice but to protect its citizens by force. Israeli PM Ehud Olmert and his center-left government approved the current operation, stating:
On this morning I can look each and every one of you in the eye and say that the government did everything possible before it decided on the ground operation. It was unavoidable.
(Jerusalem Post, January 4, 2009)
The defending state must foresee a probability of success in its military operation. Israel therefore has a legal and moral duty to use whatever legal means available to it to ensure its operation achieves the aim it set out to achieve, namely the weakening of Hamas’ capability and willingness to launch another attack against Israel. This justifies the use of air force, armor, infantry, and any other legal means used by the Israeli military.
Balancing the need for operational success is the notion of proportionality, requiring the universal good arising from military action to outweigh the universal evil. The fact that Israeli losses are less than those inevitably inflicted on the Palestinian side has been wrongly interpreted as implying a disproportionate response. The doctrine of proportionality requires a long-term view that accounts for the geopolitical ramifications of the alternative, in this case being the risk to lives of a million Israelis, coupled with the geopolitical risk that a strategic victory to Hamas (and its sponsor Iran) would pose to the Middle East. Harvard law professor Alan Dershowitz addresses this issue:
The claim that Israel has violated the principle of proportionality — by killing more Hamas terrorists than the number of Israeli civilians killed by Hamas rockets — is absurd. First, there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants. Under the laws of war, any number of combatants can be killed to prevent the killing of even one innocent civilian. Second, proportionality is not measured by the number of civilians actually killed, but rather by the risk posed. This is illustrated by what happened on Tuesday, when a Hamas rocket hit a kindergarten in Beer Sheva, though no students were there at the time. Under international law, Israel is not required to allow Hamas to play Russian roulette with its children’s lives.
(Wall Street Journal, January 1, 2009)
Jus in bello (justice in war)
Once a nation secures the moral and legal right to fight a war, it must then follow just conduct in war. Firstly, it must discriminate in its targeting between combatants and non-combatants. Israel’s air strikes over the past week have shown accuracy unseen to date in modern warfare. Israel has the disadvantage of having its enemy fortified in one of the world’s most densely populated areas and having no qualms about the use of human shields. Despite this, about one-third of casualties have been civilian, far lower than the major conflicts of the past century.
The 1,000 sorties flown to date have all been closely coordinated with on-the-ground intelligence (primarily gathered from Palestinian sources) and has kept collateral damage (admittedly, a crude term) to record lows. While each and every one of these casualties is a life that should be mourned, Israel cannot be accused of indiscriminate killing. Indeed, the standards applied by the Israeli Defense Forces (IDF) are far higher than those applied in urban conflict zones in Afghanistan and Iraq. Which other air force routinely phones the inhabitants of a target it is about to bomb to ensure that they get out of harm’s way?
Another requirement is that the use of force must be proportional to the desired outcome. Israel has used a fraction of its military might as it has no territorial ambitions over Gaza; nor is it attempting to force a regime change (despite its ability to do so under international law). Israel is trying to gain control of sites that have been used for launching attacks into Israel, destroy existing weapons stockpiles, and eliminate the weapons smuggling tunnels and key terrorist operatives that are vital to ongoing operation. Israel’s use of ground and air forces is consistent with achieving these objectives.
Israel fulfills the other requirements of jus in bello by refraining from the use of means that are evil in themselves (mala in se), by refraining from the use of prohibited weapons (incidentally, the use of chemical smokescreens is permissible under international law), by refraining from deliberate targeted reprisals against civilians, and by granting surrendering troops benevolent treatment.
Jus post bellum (justice post war)
An ethical exit strategy must be in place with a peace settlement that ensures the violated rights are enforced (rights vindication). For the war not to be fought in vain, Israel must ensure the original just cause is rectified through a sustainable cessation of violence. Israel must therefore not agree to the unilateral ceasefire proposed by the Europeans. U.S. Vice President Dick Cheney articulated this position:
If there’s to be a ceasefire, you can’t simply go back to the status quo ante, what it was a few weeks ago, where you had a ceasefire recognized by one side but not adhered to by the other. It’s got to be a sustainable, durable proposition, and Hamas has to stop rocketing Israel. And I don’t think you can have a viable ceasefire until they are prepared to do that.
(CBS News, January 4 2009)
Another principle requires the terms of settlement to be proportional and publicity proclaimed. From the outset, Israel’s aim in this operation has been the reinstatement of an effective ceasefire. A proportional ceasefire is likely to include the following elements: a cessation of rocket fire on Israel, a withdrawal of Israeli forces from Gaza, the lifting of the blockade on Gaza subject to assurances on cross-border weapons smuggling, and the release of all POWs (including Israeli Cpl. Gilad Shalit).
Other principles of just peace settlement include that civilians are immune from punitive measures applied to the political and military leadership, allowance for the aggrieved party to receive compensation for the cost of war, and the implementation of post-war reform of the aggressor’s regime. Israel is likely to waive these rights at present.
A just war
The body of legal and moral theory on just war conclusively shows that Israel is acting well within its rights. Indeed, the moral case for this operation is indeed stronger than the case for the war in Afghanistan, a war universally accepted as just. Israel’s operation is in response to a clear ongoing threat by an aggressor (compared to a single act of aggression by its proxy); it followed a six-month attempt at a truce (compared to three weeks of military preparations); it has the modest aim of cessation of violence (rather than regime change); and it has significantly more discriminate targeting and lower collateral damage than the war in Afghanistan.
While rogue regimes use war as a mechanism to maintain their illegitimate hold on power, the inherent nature of democracies prevents unnecessary war and penalizes warmongers. Democracies are inherently prone to peace, which is why “democracies don’t attack each other” (U.S. President Bill Clinton, 1994 State of the Union address). Israel as a democracy surrounded by rogue regimes has to balance its inherent abhorrence of violence with the violent zeal of the rogue regimes it is surrounded by. Israel cannot be expected to act like Sweden when its neighbors are neither Norway nor Finland.
As nations around the world increasingly confront the menace of terrorism and rogue regimes, the Western world will have to learn the unpleasant truth that there is a time for peace and a time for war. Bill Clinton’s pacifist stance on Rwanda caused more deaths than any act of war America has ever engaged in. The pacifist does not necessarily have the shorter sword than the warrior.
It is time the world stops the doublespeak of moral equivalence. Every Palestinian innocent life lost is a tragic undesired outcome for the Israeli side, whereas the loss of Israeli civilian life is the aim rather than an incidental outcome for Hamas. In the conflict between Israel and Hamas, there simply is no moral equivalence. It is time the world recognized this truth and spoke in one voice.
Another man asked: “What kind of jihad is better?”
The Prophet replied, upon him peace: “A word of truth spoken in front of an oppressive ruler.”
(Sunan Al-Nasa’i, Number 4209)